Nazi salute lawsuit against California town can proceed

The Sacramento BeeOctober 5, 2011 

The U.S. Supreme Court has left intact an appellate ruling that a man who was thrown out of a Santa Cruz City Council meeting and arrested for giving a mock Nazi salute to the mayor is entitled to a jury trial on his freedom of speech damage claims.

Homeless advocate Robert Norse sued the city, its council members and the mayor who held office at the time of the 2002 incident, and the officer who arrested him.

Last December, an enlarged panel of the 9th U.S. Circuit Court of Appeals reversed a San Jose trial judge's 2007 dismissal of Norse's lawsuit. In throwing the case out, U.S. District Judge Ronald M. Whyte found the salute to be disruptive, thus justifying his banishment. But Judge Sidney R. Thomas, writing the opinion for the unanimous 11-member circuit panel, said the silent salute did not disturb or impede the meeting.

"We must respectfully reject the city's attempt to engage us in doublespeak," Thomas wrote. "Actual disruption means actual disruption. It does not mean … imaginary disruption. The city cannot define disruption so as to include non-disruption."

A jury should answer the question – raised by videotapes of the meeting – of "whether Norse was impermissibly ejected because of his viewpoint, rather than his alleged disruptiveness," Thomas concluded.

The opinion not only reversed Whyte, but a 2009 majority ruling by a split three-judge 9th Circuit panel. The entire appellate court then voted to rehear the case before an enlarged panel. On Monday, the first day of the Supreme Court's 2011-2012 term, the justices rejected without comment Santa Cruz's petition asking the high court to accept the case for review.

"The mayor threatened members of the public waiting to speak," Norse, who was in the audience, wrote in an opinion piece for the Santa Cruz Sentinel newspaper last January. "So I silently raised my hand in a mock-Nazi salute."

The council ordered Norse to leave, and when he refused, he was arrested and held for 5 1/2 hours before being released without charges.

He wrote in the opinion piece that the 11 appellate judges' message to the mayor and City Council is: "Stop being bullies. Your job is to hear the public, not dominate it."

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